of charge, inasmuch as the cost of carrying coal for long distances and in large quantities is less in proportion than the cost of carrying it for shorter distances and in smaller *quantities. But that does not account for the circumstance of the scale of charges for the [*153 carriage of train-loads of coal from Peterborough diminishing precisely at the point where the landborne coal comes into competition with the seaborne coal, thus depriving the complainants and the other dealers in the last-mentioned coal of a considerable portion of the natural advantage of their geographical position. There is no pretence for saying that the cost of carriage to the company is less in this intervening space. Cur. adv. vult. WILLIAMS, J., now delivered the judgment of the court:

The rule in this case calls on the Eastern Counties Railway Company to show cause why an injunction should not issue against them, enjoining them to desist from giving any undue preference in respect of the carriage of coals, to dealers sending them from Peterborough towards certain places on the railway at which the complainants deal in coals, and from subjecting them to any undue prejudice in respect of the carriage of coals from Ipswich to those places, and enjoining the company to carry coals thither for the complainants on equal terms with the dealers sending coals from Peterborough, having due regard to the circumstances, if any, which render the cost of carrying for the one party less than the cost of carrying for the other.

The complainants charge the company with having contrived a scale of charges for the carriage of coals on their railroad with a view to give the traders in landborne coals brought along it from Peterborough, an undue advantage over the seaborne coals brought along it from Ipswich. On the argument, before my Brothers Crowder and *Willes' [*154 and myself, the complaint was rested by the counsel for the applicants mainly on two grounds contained in the affidavits. The first was, that the company, since May 1st, 1857, have established a system of carrying coals according to assigned districts, comprising certain places on their lines and their various branches, and within these several districts the company carry coals at certain lower rates for quantities not less than what is called a train-load, i. e. 200 tons, or 35 trucks. The complainants, who are coal-dealers at Ipswich, also carry on that business at Needham Market, Stowmarket, Elmswell, Thurston, and Bury, which are places on that branch of the company's lines which conducts to Peterborough; and also at Mellis and Diss, which are on another branch line communicating with that first mentioned; and also at Hadleigh, which is on another distinct branch. These districts, the complainants assert, have been so adjusted that the places where they deal, instead of being put into one district, are distributed into three; so that, in order to take advantage of the reduced rates, it is necessary to send from Ipswich three train-loads, one into each district,-which is a greater quantity than their traffic demands. They say, therefore, that it is thus rendered impossible for them to avail themselves of the lower rates whereas, the districts are so arranged, that, for dealers sending coals from Peterborough, instead of from Ipswich, a single district is constituted, which comprises, besides other places, seven of those at which the complainants deal, and so affords a traffic requiring such a

quantity of coals as enables the Peterborough dealers to take advantage of the lower rates.

On the part of the company, the greater part of these suggestions is denied by affidavit: and, particularly, it is sworn by Mr. Mosely, the traffic-manager, that the company would make no profit at all, if they *155] were to carry a less quantity than a train-load, in a separate train, at the lower rate; and that, as to the adjustment of the districts, they were fixed and assigned by himself, having regard to the quantity of coals carried along the lines, and the places to and from which they were carried, and the consumption of coal which would be required for the use of the population of the places comprised in the districts and he goes on to deny positively that they were fixed or adjusted in order to give any undue preference to the landborne coaltraders, or work any prejudice to the seaborne. And it is also sworn that the districts into which the places where the complainants deal are distributed, comprise also other places containing a large population.

On the whole, therefore, we think that this ground of complaint has not been sustained; for, although we think the company have failed to show that the district system, arranged as it now stands, is not disadvantageous to the complainants, yet, looking at the affidavits on both sides, we cannot find sufficient to justify us in coming to the conclusion. that the complainants are unduly subjected to this disadvantage, or that it is caused by any undue preference or partiality, as suggested. It is their misfortune, which we cannot remedy, if the state of their trade is such that it happens not to accommodate itself to a scale and system of rates which does not appear to be disadvantageous to the public at large, or objectionable in other respects.

The second ground of complaint is, that the company charge rates for carrying coals from Ipswich to places where the complainants deal, which, it is alleged, are out of all proportion greater than the rates charged for carrying coals from Peterborough to those places; inasmuch as the company charge for carrying a train-load from Ipswich to Bury, which is only 27 miles, the sum of 28. 5d., and from Peterborough to the same place, *which is 74 miles, the sum of 4s. 3d.,-from

*156] Ipswich to Thurston, which is 23 miles, the sum of 28. 2d., and from Peterborough to the same place, which is 78 miles, the sum of 48. 4d.,-from Ipswich to Elmswell, which is 18 miles, the sum of 18. 10d., and from Peterborough to the same place, which is 83 miles, the sum of 48. 5d., from Ipswich to Diss, which is 27 miles, the sum of 28. 5d., and from Peterborough to the same place, which is 98 miles, the sum of 48. 6d.,-from Ipswich to Mellis, which is 23 miles, the sum of 2s. 2d., and from Peterborough to the same place, which is 95 miles, the sum of 48. 6d. and a similar disproportion between the distances over which the coals are carried, and the prices charged for carrying them, is shown as to the other places where the complainants deal.

In answer to this, it is sworn, on the part of the company, that there are circumstances which render the cost to the company per ton per mile of carrying coal from Peterborough to the places where the complainants deal, less than the cost of carrying coal from Ipswich, so as to justify the difference of charge: because the cost of carrying coal for long distances is proportionably less than the cost of carrying it for short

distances. It is further sworn, that, on an analysis of the comparative. cost of carrying for various distances ranging from 10 to 90 miles, and of the rates charged by the company for those distances, and a comparison of those results, it appears that the charges made by the company for carrying coals from Peterborough to the places where the complainants deal, are greater in proportion to the cost of carrying than the charges made by the company for carrying coals from Ipswich to those places; and, consequently, that the profit to the company is greater with respect to the former than the latter. It is also sworn that the adjustment of districts, and the scale of rates for the carriage. of coals, are not confined to Peterborough and Ipswich, but [*157 extend on precisely the same footing to other places on the company's lines, viz., the ports of Wisbeach, Lynn, Yarmouth, Lowestoft, Harwich, and Colchester.

But there is a portion of the scale of rates as to which we think no satisfactory explanation has been given by the company. The scale for train-loads of coals in the owners' wagons begins to increase at the distance of 14 miles. From thence up to the point of 20 miles it increases at the rate of 1d. per ton per mile. It then goes on increasing (with some exceptions) at the rate of 1d. for every two miles, till it reaches the point of 60 miles. Then it increases at the rate of 1d. for 3 additional miles, and then at the rate of 1d. for 4 additional miles, till it reaches the point of 75 miles. Then it increases only 1d. for 6 additional miles, till it reaches the point of 81 miles: and then it increases only 1d. for the additional distance of 12 miles, till it reaches the point of 93 miles; and then it increases only 1d. for the additional distance of 6 miles, till it reaches the point of 100 miles. The scale then reverts to the earlier ratio of increasing at the rate of 1d. for every 2 miles, and continues invariable at that rate of increase till it reaches the maximum distance, viz., 137 miles.

It is therefore obvious, that, on this scale, the charge is the same to the Peterborough dealers, whether they send their coals, in the direction of the places where the complainants deal, 76 or 81 miles, and whether they send them 82 or 93 miles, and whether they send them 95 or 100 miles. In effect, as far as respects the cost of carriage, the distance from Peterborough is abridged, in these instances, to the extent of 5, 11, and 5 miles respectively; and the Peterborough dealers are only charged 2d. per ton for the journey of 24 miles which intervenes between the point of 76 miles distance from *Peterborough and the point of 100 miles distance from that place. And it will be found that [*158 between these points lie all the places (except Bury and Hadleigh) where the complainants deal, and where the landborne coal is alleged to be brought into competition with the seaborne. And thus the carriage from Peterborough to Stowmarket and Needham Market (two of the places where the complainants deal), which are distant respectively 88 and 92 miles from Peterborough, is charged the same as if they were distant only 82 miles. And the distance from Bury to Diss,-including in its course Thurston, Elmswell, and Mellis, and amounting to 24 miles,only increases the charge to the Peterborough dealers by 3d. But, as soon as the distance reaches 100 miles, that is, as soon as the places where the competition exists are passed, the scale resumes the increasing ratio of 1d. for every 2 miles.

VOL. IV.-8

This anomalous part of the scale is not accounted for by the company, as far as we can discover. It is true that it pervades all the districts, and is applied to Lynn and Yarmouth and all the other ports on the company's lines, and is not peculiar to that portion of them which conducts from Peterborough to Ipswich. If it had been so, the pressure on the complainants would have been so transparent that it would have been a palpable evasion of the injunction already obtained in this court by the same complainants against this company: see In re Ransome, 1 C. B. N. S. 437 (E. C. L. R. vol. 87).

But the question remains, whether the rate, even thus guarded, must not necessarily be deemed, when closely considered, as in reality a disguised infringement of the principles on which the judgment of this court on that occasion was founded. The effect of such a scale of charges, is, to diminish the natural advantages which the position of the dealers at Ipswich, by reason of its greater proximity, gives them over the dealers at *Peterborough, in respect of the traffic at Thurston, **159] Elmswell, Stowmarket, Needham Market, Mellis, and Diss, by annihilating, in point of expense of carriage, a certain portion of the distance between Peterborough and those places. And just in the proportion by which the natural advantage is diminished, an undue preference is given to the Peterborough dealers, and an undue disadvantage is brought upon the complainants and the other Ipswich dealers.

We are, therefore, of opinion that a writ must issue, enjoining the company to desist from giving an undue preference, in respect of the carriage of coals, to persons sending coals from Peterborough or other places to or towards the places mentioned in the rule. And we think the company ought to pay the costs of this application.

The rule was drawn up as follows:-"It is ordered that a writ of injunction do issue against the said company pursuant to the Railway and Canal Traffic Act, 1854, enjoining the said company to desist from giving an undue preference in respect of the carriage. of coals on the railways of the said company to persons sending coals by the said railways from Peterborough or other places to or towards Needham Market, Stowmarket, Elmswell, Thurston, Bury St. Edmunds, Hadleigh, Mellis, Diss, and Ipswich, or any of them," with costs.

*160]

T. JONES, in Easter Term, 1858, obtained a rule calling upon six persons (named), directors of the Eastern Counties Railway Company, to show cause why a writ or writs of attachment should not issue forth against them as such directors, for disobedience of the above *writ of injunction, on the ground that, professing to obey the writ, the company had altered their rates of charges in such a manner as to leave the substantial grievance complained of still existing. The affidavits upon which the motion was founded, after referring to the former application and to the writ issued in pursuance thereof, proceeded to state, that, on the 26th of March, 1858, the company issued new regulations for the conveyance of coals from Ipswich and from Peterborough, and a new scale of coal-rates of which the following is a copy:

[*162

*The affidavits then went on to state, that, up to the 26th of March, 1858, the company charged the same rates for the carriage of coals from Peterborough to Needham Market, Stowmarket, Elmswell, Thurston, Bury St. Edmunds, Hadleigh, Mellis, Diss, and Ipswich, as they did prior to the application for and the granting of the injunction; and up to the 26th of March, 1858, the company charged the same rates for the carriage of coal from Ipswich to Needham Market, Stowmarket, Elmswell, Thurston, Bury St. Edmunds, Hadleigh, Mellis, and Diss, as they did before the injunction: That, since the injunction, the company have charged the complainants the same rates for the carriage of coal from Ipswich to the places last mentioned as they did prior thereto: That, since the 26th of March, 1858, the company have charged